Going and Coming Rule Bars Recovery in Texas Plaintiff’s Vicarious Liability Action
Citing precedent from the Supreme Court of Texas, a lower appellate court held that the going and coming rule—a creature of the workers’ compensation setting—could be applied in plaintiff’s vicarious-liability tort action so as to bar recovery in a civil action stemming from a motor vehicle collision [EAN Holdings, LLC v. Arce, 2021 Tex. App. LEXIS 8354 (Oct. 14, 2021)]. Applying the rule, the court held, as a matter of law, that since the individual defendant was traveling home from work at the time of the motor vehicle accident, his actions did not occur within the course and scope of the employment and his employer, therefore, could not be vicariously liable for any negligence of the employee.
Background
The plaintiff was involved in a motor vehicle accident with Nelson, who was employed by defendant EAN Holdings, LLC (EAN) as a branch manager of one of its rent-a-car offices. At the time of the accident, Nelson was driving home from his branch office in a car owned by EAN. The plaintiff sought damages from EAN, claiming it was vicariously liable for the torts of its employee.
Nelson had enrolled in a “personal-use program,” pursuant to which he was charged $200 per month for the use of a vehicle owned by EAN. The program permitted him to drive a car from the rental lot to and from his home and also to drive a vehicle on weekends and on his off-duty days for personal use. He could choose any vehicle on the lot and did not drive the same vehicle every day.
A jury determined that Nelson was in the course and scope of his employment at the time of the collision, found Nelson 100 percent causally negligent and awarded the plaintiff substantial damages. After unsuccessfully attempting to obtain a judgment NOV, EAN appealed.
Appellate Court’s Reverses
Relying upon Painter v. Amerimex Drilling I, Ltd., 61 Tex. Sup. J. 823, 561 S.W.3d 125 (2018), the appellate court initially observed that the going and coming rule, under which an employee is generally not acting within the scope of his employment when traveling to and from work, applies in the vicarious-liability context. The court added that the evidence was uncontroverted that Nelson was on his way home from work with an intermediate stop to pick up dinner for himself at a burger restaurant when the accident occurred. The court said Nelson was not traveling in the performance of regular or specifically assigned duties for the benefit of his employer. Accordingly, it held as a matter of law, that Nelson was not in the course and scope of his employment at the time of the collision.
The court rejected the plaintiff’s contention that the jury’s finding that Nelson was acting in the course and scope of his employment was supported by the fact that EAN had safety policies and procedures for employees driving company vehicles for personal use. EAN’s policies did not control the details of the employee’s driving. Moreover, the plaintiff had cited no authority to support his contention.
The same was true generally for EAN’s establishment of its personal-use program. That program did not create a right of contractual control sufficient to impose vicarious liability on EAN for Nelson’s negligence in this case.
Having found that legally insufficient evidence supported the jury’s finding that Nelson was acting in the course and scope of his employment, the court reversed the trial court and rendered judgment that the plaintiff take nothing.